Procedural defects in arbitration proceedings

Bias

A series of cases decided by the English courts in the last few months have set out the guidelines which are to be applied in determining whether an arbitrator should be removed for lack of impartiality under s24 of the Arbitration Act 1996 and, if an award has been made, whether the award itself should be set aside under s68 of the Arbitration Act 1996. In essence, an arbitrator can be removed and the award can be set aside if: (a) the arbitrator has an interest in the outcome which renders him in effect a judge in his own cause; (b) there is on the face of things a strong likelihood of bias, springing from the arbitrator’s relationship with one or other of the parties; or (c) independently of any prima facie appearance of bias, the arbitrator has conducted the arbitration in such a fashion that he has plainly failed to treat the parties equally. Category (b) is perhaps the most complex and gives rise to the most borderline cases. One such came before the Supreme Court of the Australian Capital Territory in Cadoroll Pty Ltd v Mauntill Pty Ltd [2000] ACTSC 79. This case also contains important discussions of the power of the court to grant summary enforcement of an award, the scope of arbitration agreements and the ability to challenge an award where the application is made out of time.